Help please - have i made a mistake?

KeithP

Not relevant land

Premier Park (PP) claim this point is irrelevant.!
It certainly is relevant. Schedule 4 of POFA is clear.!
Ilfracombe Council is a traffic authority. Any land which is provided by a traffic authority, like Ropery Road Car Park, is not relevant land (see Paragraph 3 (1) (b) of Schedule 4 of POFA).
Ropery Road is owned by Ilfracombe Town Council, the land is subject to statutory control and there can be no keeper liability to pay parking charges (see Paragraph 3 (1) (c)) of Schedule 4 of POFA). Even if the land was not subject to statutory control (which Premier Park have offered no evidence to disprove), Paragraph 3 (1) (b) would still apply.

Signage

PP claim they are fully compliant with the BPA Code of Practice.
I provided clear (and more recently taken) photos of the signage at Ropery Road. The entrance signs do not comply with BPA guidelines which states that it must tell drivers that you are using ANPR and what you will use the data captured for. The entrance sign at Ropery Road does not meet this criteria. Neither does it state that it is a Pay and Display car park as required in Appendix B of the BPA code of practice.
PP have supplied many photos which further serve to highlight how illegible the signs are. Some of the signs do not mention a £100 charge. A driver cannot be held to have 'agreed' to pay a penalty not displayed.

ANPR – Operator is put to strict proof that use of ANPR complies with Information Commissioners Office and BPA Code of Practice

PP has offered no evidence to show compliance.

Contract

PP have submitted a heavily redacted contract with the signatures removed. POPLA must surely require a level of certainty when assessing the validity of a landholder contract and / or witness statement that has been signed on behalf of Ilfracombe Town Council. How can POPLA accept an illegible signature of an unnamed person as evidence of the existence of a valid contract between PP and the Council.

That's 1946 characters.

Hope that helps.

I have not checked whether the points you have made are appropriate or not... but you didn't ask that.

Coupon-mad

Fight!

Standupforyourself

wow, this is....awkward....

Coupon-mad

Do your own version, it's only about removing some words!

Standupforyourself

Haven't heard back yet. However, just reading through the POPLA Annual Report for 2018 and it appears that only about 8% of POPLA appeals are approved in relation to PP against the industry average of 22%. But then it appears that PP contest a higher percentage of appeals than the average PPC.

Statistically my chances are not good...

Umkomaas

We have noticed that PP seem to win more POPLA appeals than most others, sometimes on rather less than solid ground. There's no evidence as to why (other than random conjecture).

Standupforyourself

and as expected...Popla appeal is rejected.

Should i post the response here or on the POPLA thread?

Coupon-mad

On the POPLA Decisions thread please.

Just ignore PP but be aware they trawl this forum, and that they might start a claim. You will get a fairer and wiser hearing in small claims than POPLA's opinion.

Standupforyourself

have posted on the POPLA thread

Coupon-mad

This was the decision, and we say the Assessor has not addressed the point that this is land operated by the Council and it cannot be relevant land, because Councils are not allowed to operate their car parks as if they were private land, when the statutory TMA2004 is open to them to use:

Decision Unsuccessful

Assessor summary of operator case
The operator’s case is that the total duration of parking time was not paid for.

Assessor summary of your case
The appellant has raised several grounds for appeal as follows:

• The area is not relevant land and is Council owned. The appellant says that the land in question is owned by Ilfracombe Town Centre as confirmed in writing by REDACTED who is an asset manager at the Ilfracombe Town Council. The appellant has provided a link to the website for Ropery Car Park. The appellant has mentioned The Protection of Freedoms Act (PoFA) 2012 paragraphs 1 and 3 in relation to relevant land.

• No keeper liability as the operator has not shown that the individual it is pursuing is the driver who was liable for the charge. They say that they are the keeper and no admission of the driver has been made. They say that the burden of proof rests with the operator to prove this.

• The signage was not prominent clear or legible from all parking spaces and there is insufficient notice of the sum itself. They say that it does not meet the BPA Code of Practice section 18 requirements.

• Use of Automatic Number Plate Recognition (ANPR) as the appellant says that the operator is put to strict proof that the ANPR technology complies with the British Parking Association (BPA) Code of Practice and the ICO. They say that the BPA Code of Practice section 21.1 has not been met.

• No evidence of land owner authority. The appellant says that the operator is put to strict proof of full compliance of the BPA Code of Practice. They say that is cannot be assumed that an agent is contracted to issue PCN’s just because there is signage erected. They say that witness statements are not sound evidence. They say that the operator must meet section 7 of the BPA Code of Practice.


Assessor supporting rational for decision

The driver of the vehicle has not been identified. Therefore, the operator is pursuing the registered keeper for the parking charge.

As such I need to consult with the provisions of the Protection of Freedoms Act (PoFA) 2012.

For the operator to transfer liability for unpaid parking charges from the driver of the vehicle to the registered keeper of the vehicle, the regulations laid out in the PoFA 2012 must be adhered to. Having viewed the notice to keeper I am satisfied that the operator has complied with the provisions laid out in section 4 paragraph 9 of PoFA 2012, and that liability of the parking charge was successfully transferred to the keeper. As such I will be considering the keeper’s liability of the parking charge.

When entering private land, motorists are expected to comply with the terms and conditions. The operator has provided images of the signage laid out at the site. The terms and conditions of the site state: “Up to 4 hours £4.00…Ilfracombe Town Council is not involved in the parking management of this car park & cannot intervene in any disputes…If you enter or park on this land contravening the terms and conditions displayed, you are agreeing to pay: Parking Charge Notice (PCN) £100.”

The operator has provided photographic evidence of vehicle, REDACTED entering the site at 11:21 and exiting at 14:53, totalling a stay of three hours and 31 minutes spent at site. The operator maintains a list of vehicles that have made a payment. The operator has provided a copy of this list that shows that when searching for the appellant’s vehicle it was registered against a payment covering three hours parking only.

The PCN was issued as the total duration of the appellant’s stay was not paid for. On the face of the evidence, I consider it looks like there is a contract between the appellant and the operator, and the evidence suggests the terms have been breached.

I now turn to the appellant’s grounds of appeal to determine if they make a material difference to the validity of the parking charge notice.

The appellant states that there is no keeper liability as the operator has not shown that the individual it is pursuing is the driver who was liable for the charge. They say that they are the keeper and no admission of the driver has been made. They say that the burden of proof rests with the operator to prove this.

As discussed at the start of my assessment the operator is pursuing the keeper for the PCN. The operator has complied with PoFA 2012 when transferring liability from the driver to the keeper.

The appellant says that the area is not relevant land and is Council owned. The appellant says that the land in question is owned by Ilfracombe Town Centre as confirmed in writing by REDACTED who is an asset manager at the Ilfracombe Town Council. The appellant has provided a link to the website for Ropery Car Park. The appellant has mentioned The Protection of Freedoms Act (PoFA) 2012 paragraphs 1 and 3 in relation to relevant land.

{And...nothing????}


No evidence of land owner authority. The appellant says that the operator is put to strict proof of full compliance of the BPA Code of Practice. They say that is cannot be assumed that an agent is contracted to issue PCN’s just because there is signage erected. They say that witness statements are not sound evidence. They say that the operator must meet section 7 of the BPA Code of Practice.

The operator has provided POPLA with a copy of the contract between itself and the landowner. This shows that the operator began an agreement with Ilfracombe Town Council on 18 October 2016 to enforce parking on its behalf. The contract is for a period of 36 months from the commencement date, and from this point will become a 12 month rolling contract until notice is served by either party. I am satisfied that this evidence is sufficient in proving that the operator has an agreement with Ilfracombe Town Council.

The appellant raises the use of ANPR cameras as the appellant says that the operator is put to strict proof that the ANPR technology complies with the British Parking Association (BPA) Code of Practice and the ICO. They say that the BPA Code of Practice section 21.1 has not been met. Section 21.1 of the BPA Code of Practice states: “You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.” It is stated on the signage that: “Camera enforcement in operation. Images captured are used for parking enforcement purposes.” I am satisfied that this requirement of the BPA Code of Practice was met as it was explained what the cameras were being used for. This also meets the requirements of the ICO. The BPA audits the ANPR systems in use by parking operators in order to ensure it is in good working order and the data collected is accurate.

Errrm...not they don't and POPLA promised that sentence would NOT be used again, as it's not true.


Independent research has found that the technology is accurate.

No, it hasn't.

The appellant has not provided me with any evidence to disprove that the ANPR cameras were not working on the date of the event, as such I consider that they were fully accurate. The British Parking Association (BPA) Code of Practice states in section 19: “If the driver breaks the contract, for example by not paying the tariff fee or by staying longer than the time paid for, or if they trespass on your land, they may be liable for parking charges. These charges must be shown clearly and fully to the driver on the signs which contain your terms and conditions.”

I acknowledge the appellant’s comments. However, it is the motorist’s responsibility to ensure that they park in accordance with the terms and conditions on private land. By parking on this land this signifies their acceptance of the terms and conditions and as the total duration of parking time was not paid for these terms and conditions were not met.

Further they say that the signage was not prominent clear or legible from all parking spaces and there is insufficient notice of the sum itself. They say that it does not meet the BPA Code of Practice section 18 requirements. It also states in section 18.3: “Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.”

Having viewed the images of the signage on display I am satisfied that the signage was conspicuous, and easy to read and understand.


The legality of parking charges has been the subject of a high profile court case, ParkingEye-v-Beavis {SNIPPED THE CRAP OUT}


...As such, I must consider whether the signage at this site is sufficient. When doing so, I must first consider the minimum standards set out in Section 18 of the BPA Code of Practice. Within Section 18.1 of the BPA Code of Practice, it states as follows: “You must use signs to make it easy for them to find out what your terms and conditions are.” Furthermore, Section 18.3 of the BPA Code of Practice states: “You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.”

As stated, these are the minimum standards that a parking operator must meet when informing motorists of the terms and conditions at a particular site. In addition to this, I note that within the Protection of Freedoms Act 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given “adequate notice” of the charge. The Act then moved on to define “adequate notice” as follows: (3) For the purposes of sub-paragraph (2) “adequate notice” means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land. Even in circumstances where PoFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own independent assessment of the signage in place at the location.

Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and PoFA 2012, I am of the view that the signage at the site is sufficient to bring the parking charge to the attention of the motorist.

Therefore, having considered the decision of the Supreme Court decision,

Errrrm....why? It wasn't argued in appeal because the Beavis case is not the same, on any facts, and in that case the driver was known and held liable as driver, on private 'relevant land' (non Council owned) retail park land.


...I conclude that the parking charge in this instance is allowable. Although the charge may not be a genuine pre-estimate of loss; the signage at the location is clear, the motorist did not keep to the terms and conditions set out on the signage, and the charge is neither extravagant nor unconscionable. While the charge in this instance was £100; this is in the region of the £85 charge decided on by the Supreme Court. Upon consideration of the evidence provided I conclude that the operator has correctly issued the parking charge.

You need to complain that the Assessor has clearly got stuck on the point about 'not relevant land' so just left it unaddressed, completely, despite raising it above. He/she has just moved on to the next point, no doubt intending to come back to it later then forgotten!

You can find how to complain to POPLA about a failure in the process, in their website FAQS.

Show us the draft complaint first. As I warned you in the POPLA Decisions thread:

Looks like one to complain to POPLA that your not relevant land point was neither rebutted by PP, nor addressed, at all, by the Assessor who appears to have misunderstood it.

You have to word a complaint carefully, not complaining that the Assessor was 'wrong' or you disagree with the outcome. You can only complain about a failure of the process and/or if an Assessor has failed to consider evidence/points in the appeal, and spell it out.

Seems to us they missed the vital argument altogether. Show us your draft complaint.

Just in case POPLA fail to address the complaint well and reconsider the not relevant land point, you should know that we test PPC cases in court all the time and see 99% wins by posters here.

PP also read this forum so no saying who parked the car, and no replying to any intimidating ''we've been reading your posts'' pm they might send to you, as they did to a Defendant last year (Andrew Gogun, I think....read his thread!).